Fallout of Cuomo’s Moreland probe unclear

Legal experts are at odds on whether Cuomo’s office’s alleged interference in the Moreland Commission to Investigate Public Corruption’s work raises any legal questions

New York Governor Andrew Cuomo speaks during a ceremonial bill signing in New York, Monday, July 7, 2014. New York has become the 23rd state in the U.S. to authorize medical marijuana, though the state's program is one of the nation's most restrictive. Cuomo signed the measure into law on Saturday and held the formal signing ceremony on Monday to highlight the new law. When the program gets up and running in about 18 months, patients with diseases including AIDS, cancer and epilepsy will be able to obtain non-smokeable versions of the drug. Instead, the drug must be ingested or administered through a vaporizer or oil base. (AP Photo/Seth Wenig)(Photo: Seth Wenig, AP)

Story Highlights

It’s unclear who would be able to properly investigate any potential state-law violation

The commission’s brief life and abrupt shutdown has attracted the attention of a federal prosecutor.

Gubernatorial hopefuls Astorino and Teachout have knocked Cuomo for the alleged interference

ALBANY – Gov. Andrew Cuomo and his critics differ on whether it was appropriate for his office to be involved in behind-the-scenes talks about who should and shouldn’t get subpoenas in an anti-corruption probe he vowed would be independent.

Legal experts are at odds on whether Cuomo’s office’s alleged interference in the Moreland Commission to Investigate Public Corruption’s work raises any legal questions, and it’s too soon to say whether the issue will have any impact on Cuomo’s massive lead in public-opinion polls heading into the November election.

This much, however, is not in dispute: The commission’s brief nine-month life and abrupt shutdown has attracted the attention of a powerful federal prosecutor. And Cuomo’s political opponents are trying to make the most of it.

“The political implications? It’s too early to tell,” said Siena College pollster Steven Greenberg. “The jury is still out. Is this a story that develops legs, that becomes part of the public consciousness? It hasn’t yet, but it may or it may not.”

Despite Cuomo initially saying the commission would be independent to look at his operations as well as any other official, The Times reported top Cuomo aide Larry Schwartz urged the commission’s co-chairs to curtail subpoenas that had been headed for two Cuomo allies.

Though the Moreland panel, a group of 25 of law-enforcement officials and legal experts, sent ripples through the Albany establishment and was at the center of a legal battle with the state Legislature, it never permeated the public consciousness during its brief existence.

After Cuomo disbanded the commission in late March when lawmakers agreed to a series of ethics reforms, 73 percent of New York voters said they had heard little or nothing about it, according to an April poll by Siena.

Still, Cuomo’s political foes have tried to pounce.

Both Republican gubernatorial hopeful Rob Astorino and Zephyr Teachout, who is hoping to challenge Cuomo in a Democratic primary, have repeatedly knocked Cuomo for the alleged interference in recent days, calling on him to address the claims publicly. A Siena poll Monday showed Cuomo with a 37-percentage-point lead over Astorino.

Cuomo has not made any public appearances since The Times story was published. But the issue has gained national attention, with both Fox News and MSNBC devoting airtime to it and Comedy Central’s “The Daily Show” skewering Cuomo on Thursday.

“This is some really serious stuff here,” Astorino said Friday on Fox News’ “Fox & Friends.” “It’s certainly a game-changer. We’ve gotten a lot of people in the last 24 hours asking to volunteer.”

In a response to The Times, Cuomo’s office said Schwartz offered advice to the commission’s three co-chairs, who had to unanimously agree to send any subpoenas. But the co-chairs, according to Cuomo’s office, made all decisions.

It’s unclear what legal issues U.S. Attorney Preet Bharara, who has been critical of Cuomo’s decision to disband the commission and has inherited its investigations that were cut short, is examining.

Bharara’s office, which has jurisdiction is the Southern District of New York, has issued subpoenas to all 25 of the Moreland panel’s members demanding they produce any documents related to the commission, according to Rockland County District Attorney Thomas Zugibe, a member of the panel.

William Aronwald, a White Plains attorney who is a former federal and state prosecutor, said he doesn’t see any legal wrongdoing.

“When he appoints a commission, he’s the one who determines what he wants the commission to look at,” Aronwald said Friday of Cuomo. “And so if the commission becomes a runaway commission and looks at things the governor did not appoint them for, then I think he had the right to … disband the commission.”

In a 13-page statement to The Times before its report was published, Cuomo’s office said the commission wasn’t independent because it was created by Cuomo and staffed by his office.

But former Assemblyman Richard Brodsky, who has written about the Moreland Commission’s makeup and legal authority, said a separate action by Cuomo and Attorney General Eric Schneiderman raised a new set of legal questions.

In his executive order creating the Moreland panel, Cuomo directed Schneiderman to deputize many of the panel’s members, officially making them deputy attorneys general and broadening their investigative powers.

Under the state Moreland Act, a Moreland Commission can only investigate the executive branch. With Schneiderman’s action, the panel could probe state government more broadly.

“(Cuomo) used his powers under the executive law to refer a matter to the attorney general,” said Brodsky, a Democrat from Greenburgh, Westchester County. “He has every right to do that. The interesting question, though, is once you do that, is it your investigation or is it the attorney general’s investigation? That, I think, is at the heart of this issue.”

But while Bharara has jurisdiction under federal law, it’s unclear who would be able to properly investigate any potential state-law violations.

Schneiderman, whose office has repeatedly declined comment since Wednesday, was involved in the initial creation of the panel, and Albany County District Attorney David Soares -- whose district includes the state Capitol -- was a member of the Moreland Commission.

“The real question here is who’s going to investigate the investigators?” said Brodsky, who ran unsuccessfully for attorney general in 2010. “There are no obvious, easy answers. This is the kind of thing that needs an inquiry. Someone should be able to publicly determine what really happened.”